File 2: Opinion of Member Wasserman

[ v55 p80 ]

Dissenting Opinion of Member Wasserman:

      I dissent regarding the application of section 7116(a)(6) in this case. [n1]  I would not overturn decades of precedent, and would continue to apply the law so as to require that an agency maintain the status quo when a union files a request for Panel assistance.

      In interpreting Executive Order 11491, which governed federal sector labor relations prior to 1979, the Federal Labor Relations Council stated that maintenance of stability in the federal labor program required maintenance of the status quo while a request for Panel assistance was pending. Internal Revenue Service and National Treasury Employees Union, 6 FLRC 311, 320-21 (1978) (IRS). The maintenance of the status quo was deemed necessary to allow the Panel to determine its jurisdiction and to take appropriate action to settle the dispute. Id. at 321. In making that determination, the Council stated that it is necessary to maintain

the status quo to the maximum extent possible once the Panel's processes have been invoked in order to permit the Panel to decide whether to require further negotiations or to exercise jurisdiction over the dispute and, in the latter event, to take the action deemed necessary to settle the dispute.

IRS, 6 FLRC at 321.

      The Executive Order did not contain an unfair labor practice provision analogous to section 7116(a)(6). The addition of this section appears to represent the codification of the concepts developed under the Executive Order. The requirement for the maintenance of the status quo during the pendency of a request for Panel assistance was well known to Congress during the drafting of the Statute. Had Congress meant to exclude this requirement from section 7116(a)(6), it could have done so. Since Executive Order 11491 contained no counterpart to section 7116(a)(6), there was no alternative but to consider refusals to cooperate in impasse proceedings as refusals to bargain. With the passage of the Statute, the Authority was able to consider refusals to maintain the status quo during the pendency of Panel proceedings under a more focused section of the law.

           In fact, the FLRA did just that, continuing to apply the Council's approach under section 7116(a)(6). See Department of Veterans Affairs, Veterans Administration Medical Canter, Decatur, Georgia, 46 FLRA 339, 346 (1992); Department of Health and Human Services, Social Security Administration, 44 FLRA 870 (1992); Department of the Air Force, Scott Air Force Base, Illinois, 42 FLRA 266 (1991); Department of Health and Human Services, Health Care Financing Administration, 39 FLRA 120 (1991); United States Marine Corps, Washington, D.C., et. al, 42 FLRA 3 (1991); Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II, 35 FLRA 940 (1990) (DHHS); U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435 (1986); Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466, 469 (1985) (BATF). The decision in DHHS recognized that the Panel need not have determined its jurisdiction in order for the status quo requirement to attach. 35 FLRA at 950.

      I find no basis whatsoever for the assertion that there has been an inconsistent application of our precedent such that we need to modify the requirements with respect to maintenance of the status quo under section 7116(a)(6). The majority suggests that BATF has not been consistently followed insofar as we have not always required the existence of an impasse prior to imposing the status quo requirement under (a)(6). Slip op. at 13, citing VA, Decatur. The request for Panel assistance generally follows an impasse, although not always. In Scott AFB, 49 FLRA 1444 (1994), the judge declined to find a section 7116(a)(6) violation because there had been no bargaining at all prior to the filing of a request for Panel assistance. That determination was rendered irrelevant by the Authority's conclusion that there was no duty to bargain. Id. at 1454. In this case, an impasse was reached when the Agency stated its intent to implement unilaterally in a few days' time and thereby signaled that useful negotiations had come to an end. The Panel acknowledged the existence of an impasse, as it accepted the Charging Party's request for assistance, and generated a decision on the issues raised by the request. [n2]  G.C. Exhibit 19.

      The fact that we have not always required a finding of an impasse as a predicate to the request for Panel assistance is consistent with the reasoning of BATF. The Authority identified the nature of the section 7116(a)(6) violation as follows:

[W]ith regard to the finding of a violation of section 7116(a)(6) of the Statute, the Authority finds that the Respondent's implementation of the Order [the management initiated change] essentially con- [ v55 p81 ] stituted a failure to allow the Panel to take appropriate action with respect to the unresolved bargaining issues and therefore constituted a failure to cooperate with impasse procedures as required by the Statute.

BATF, 18 FLRA at 472. The Authority recognized that "cooperation" required forbearance on the part of an agency, so that the Panel could determine the proper course of action prior to management's making the change it wanted. Such action presumably could include dismissal because no impasse existed. Thus, it is not surprising to me that there are cases subsequent to BATF that do not specifically cite the existence of an impasse. I do not find such decisions to reflect an inconsistent application of our precedent, because the fundamental requirement of maintaining the status quo while a Panel request is pending has remained constant. See DHSS; Department of Health and Human Services, Health Care Financing Administration v. FLRA, 952 F.2d 398 (4th Cir. 1991) enforcing 39 FLRA 120 (unpublished table opinion); NAGE v. FLRA, 893 F.2d at 382.

      The majority refers to a Panel comment made over ten years ago to the effect that labor organizations interpreted BATF as requiring the invocation of Panel assistance as the only means of preserving the status quo, and that such an interpretation reflects a misreading of BATF. The Authority addressed the Panel's concerns, at least indirectly, in its Order Denying Request for General Ruling, 31 FLRA 1294, 1295-96 (1988). The ensuing ten years have not revealed any misunderstanding by the parties. The Authority's case law has established a well known rule which rarely has been transgressed: when the Panel has the case, implementation should be avoided. Unions obviously know that the status quo is to be maintained in situations where Panel assistance has not been requested, since they file charges about unilateral implementation under section 7116(a)(5), notwithstanding their not having gone to the Panel. See, e.g., U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690 (1991) (agency violated section 7116(a)(5) when it implemented change before negotiations were complete).

      This case does not exemplify "confusion" regarding section 7116(a)(6). Slip op. at 20. It is of little consequence that "in attempting to excuse its implementation under section 7116(a)(6) -- by asserting that the parties had not bargained to impasse -- the agency's argument may actually establish that the implementation was unlawful under section 7116(a)(5)." See id. If the law has been violated, it should be acknowledged. The majority states that "if the parties had bargained to impasse, the Union would have been obligated to seek Panel assistance in order to require maintenance of the status quo under section 7116(a)(5) of the Statute." Slip op. at 20, n.15. The parties did bargain to impasse, as evidenced by the Agency's threatened -- and then actual --implementation and the Panel's assumption of jurisdiction over the Union's request for assistance.

      The majority's characterization of the union's need to proceed to the Panel is a correct statement of the law, because a failure to seek Panel assistance can be viewed as an abandonment of the bargaining process. Thus, a union's need to invoke Panel procedures to preserve its legal position in the unfair labor practice arena will continue to exist under the new framework announced today. Since "impasses" are determined based upon the entire bargaining conduct of the parties during their negotiations, [n3]  a union would still be well advised to seek Panel involvement in the face of a threat or plan to implement a change prior to the conclusion of bargaining. I say this because implementation by an agency prior to reaching an agreement is a very strong indication that the parties have reached a "point in negotiations at which [they] are unable to reach agreement", and thus are at an impasse. Department of Defense, Department of the Navy, Naval Ordnance Station, Louisville, Kentucky, 17 FLRA 896, 897 (1985). In fact, I think that it is so strong an indication that it is virtually a per se impasse in those circumstances. [n4] 

      Thus, there is no evidence of an on-going confusion or abuse of Panel procedures by unions seeking refuge, in this or other cases. In any event, if there were [ v55 p82 ] abuse of Panel procedures by unions invoking them for the sole purpose of blocking implementation, and without a genuine desire to resolve an impasse, an agency would be free to file an unfair labor practice charge against the union under section 7116(b)(5) or (6). Furthermore, an agency may always legally implement its proposal while Panel action is pending, if it is necessary for the functioning of the agency.

      More fundamentally, it appears that the terms of the Statute itself require a result different from that reached by the majority. Section 7116(a)(6) makes it an unfair labor practice to fail to cooperate in "impasse procedures." Certainly, impasse procedures include the invocation of Panel assistance through the "request" that is required as the first step of the Panel's process. See 5 C.F.R. 2471.1. Moreover, there is nothing that suggests that the Panel's examination of its own jurisdiction is not an integral part of an "impasse procedure" within the meaning of section 7116(a)(6). Unilateral implementation of the agency's proposal can hardly be viewed as cooperation with the impasse resolution process.

      The majority believes that section 7116(a)(6) requires the procedure or decision of the Panel to require explicitly the maintenance of the status quo, and rejects the idea that there is an implied obligation to maintain the status quo as previously held for 20 years by the Authority. Slip Op. at 22. While I agree that we look at the plain meaning of the words of the statute, I note that all laws require an interpretation of words so as to effectuate Congressional intent. If we are to become such literal readers of the Statute, I am concerned that the next step will be to eviscerate the status quo requirement under section 7116(a)(5) because it too must be inferred from the duty to bargain in good faith, as it is not explicitly stated. In that regard, I am guided by the Supreme Court, which stated that

in expounding a statute, we [are] not...guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.

Massachusetts v. Morash, 490 U.S. 107, 115 (1989) quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987). The policy considerations here -- stability, maintaining an even playing field, and permitting the Panel to assess the action it will take without allowing an agency to make a preemptive strike -- all militate in favor of interpreting "cooperation with impasse procedures" broadly.

      The Court of Appeals in California has interpreted statutory language similar to that of sections 7116(a)(5) and (6). The court has found that, in the absence of an affirmative defense, it is a per se unfair labor practice for an agency to implement a change in conditions of employment while impasse procedures are pending. See Moreno Valley Unified School District v. Public Employment Relations Board, 142 Cal.App. 3d 191, 195 (1983) (Moreno Valley). Like our Statute, the California Code does not contain an explicit status quo requirement. I find the court's analysis to be instructive.

      California's public sector labor law, like our Statute, imposes two distinct requirements: good faith bargaining and good faith participation in impasse procedures. Cal. Gov't. Code, §§ 3543.5(c) and (e). The court noted the differences between the state law and the National Labor Relations Act, insofar as the former has a mandatory impasse procedure, and the latter does not. As a result, the court affirmed the Public Employee Relations Board's view that reaching an impasse under the state law would not permit the employer to implement its last best offer, in contrast to private sector law. [n5]  Moreno Valley at 195-96. The court approved the Board's analysis that a private sector impasse suggests that "pressure tactics" may begin by either side through strike or implementation, whereas the state statutory scheme called for maintenance of the status quo. Id. at 195. The court cited the negative impact of implementation during the pendency of impasse procedures as follows: destabilization in employer-employee affairs; protection against employer derogation of the exclusive representative's position in the employees' eyes; promotion of negotiating equality; and prevention of an unfair shift of pressure to employees and their unions in light of the public employer's special accountability. Id. at 195-96. [ v55 p83 ]

      The court further stated:

The statutory scheme unmistakably comprehends that an impasse may be declared only when meeting and negotiating have come to an end. This is further borne out by the fact that failure to meet and negotiate in good faith, and failure to participate in good faith in the statutory impasse procedure, are made separate unlawful practices for both employers and employee organizations. If participation in the meeting and negotiating process included participating in the impasse procedure, sections 3543.5, subdivision (e) and 3543.6, subdivision (d) [regarding the requirement to participate in impasse procedures] would be wholly superfluous.

Id. at 198. [n6]  This analysis is applicable to our Statute because of the difference between private and public sector labor law, the distinct purposes of statutory impasse provisions, and the separate requirements for good faith bargaining and cooperation with the Panel. Section 7116(a)(6) independently requires maintenance of the status quo.

      California is not unique. In Maine, the "implementation of a last best offer prior to completion of requested impasse resolution procedures [] constitute[s] a per se violation of the obligation to bargain in good faith." Mountain Valley Education Association v. Maine School Administrative District No. 43, 655 A.2d 348, 352 (Sup. Jud. Ct. ME 1995). [n7]  Pennsylvania has recognized the requirement to maintain the status quo once the mandatory, exclusive interest arbitration procedures of the law covering firefighters and police are invoked. Borough of Geistown v. PLRB, 153 LRRM 2687 (1996). Likewise, the courts in Alaska have recognized that state employees who cannot strike should not be subject to an agency's unilateral implementation of changes in conditions of employment while statutory arbitration proceedings are pending. Alaska Public Employees Association v. State of Alaska, 776 P.2d 1030, 1031 n.6 (Sup. Ct. AL 1989). Justice Rabinowitz highlighted the policy reasons for precluding unilateral change during statutory impasse proceedings as follows:

First, since employees are precluded by statute from striking during mediation periods, it would be unfair to allow an employer, shielded from employee economic force, to impose unilateral changes in working conditions. Second if an employer were permitted to impose unilateral changes during mediation, it would have less incentive to bargain over issues subject to the change.

Id. at 1034 (concurring opinion). The second point applies to the federal sector, because bargaining does not stop when Panel procedures are invoked. The Panel has stated that it "is part of the collective bargaining process, and urges parties to seek voluntary settlements at any stage of its consideration of an impasse." Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island and Rhode Island Chapter, Association of Civilian Technicians, 94 FSIP 35, 1994 WL 160407 (F.S.I.P.) at 2 n.1. Implementation of the agency's last offer does not foster continuing bargaining.

      The Authority's longstanding practice of requiring the maintenance of the status quo while the Panel's impasse procedures are being used encompasses these policy considerations and recognizes the special status of these procedures in the federal sector bargaining process. Federal unions cannot strike, and their bargaining power as an equal partner to management is seriously undermined if implementation of the agency's plan is permitted while the Panel assesses its jurisdiction and the relative value of the parties' proposals. Preservation of the status quo when Panel procedures are invoked makes good sense as a policy matter.

      In the absence of such stability of working conditions, Panel action would be rendered moot in many cases. See U.S. Army Corps of Engineers, South Pacific Division, San Francisco, California and Local 49, International Federation of Professional and Technical Engineers, 98 FSIP 64, 1998 WL 267875 (F.S.I.P.) at 7 (six proposals rendered moot by virtue of implementation of RIF); Social Security Administration, Hanover Branch Office, Hanover, MA and Local 1164, AFGE, AFL-CIO, 98 FSIP 69, 1998 WL 219739 (F.S.I.P.) at 2 (one proposal rendered moot due to accomplishment of renovations). Reliance on the possibility of a status quo ante remedy in a bad faith bargaining context under section 7115(a)(5) is unlikely to protect the continued viability of Panel action in light of the Authority's historical hesi- [ v55 p84 ] tation to order a return to the conditions existing prior to a bargaining unfair labor practice. See, e.g., United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 47 FLRA 225 (1993); Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575 (1992); Federal Aviation Administration, Washington, D.C., 19 FLRA 436 (1985); Immigration and Naturalization Service, Eastern Regional Office (Burlington, Vermont), 18 FLRA 875 (1985).

      In accord with various state courts and for the reasons stated above, I view implementation while statutory impasse proceedings are pending to be a per se unfair labor practice, absent proof that implementation was necessary for the agency to function. In response to my viewpoint, the majority points out our precedent that excuses implementation under some circumstances, even when a matter is pending before the Panel. In doing so, they contend that a per se violation under 7116(a)6) is inconsistent with the availability of defenses to an unfair labor practice complaint. In fact, "per se" is defined as "by itself; in itself; taken alone; . . . unconnected with other matters. . . ." Black's Law Dictionary, Sixth Ed., 1990. A per se violation does not mean that affirmative defenses are unavailable. See, e.g., The Mozart Company v. Mercedes Benz of North America, Inc., 833 F.2d. 1342, 1348-49) (a business justification defense is permitted in response to a tying arrangement that is a per se violation of antitrust laws), cert. denied, 488 U.S. 870 (1988); King v. Sioux City Radiological Group, P.C., 985 F. Supp. 869, 878-79 (N.D. Iowa 1997) (defamation per se may be defeated by affirmative defenses of truth or qualified privilege). Here, unilateral implementation is an unfair labor practice, absent other facts that justify it.

      The "necessary for the agency to function" defense described in BATF provides such a justification for unilateral implementation, and it applies when there is an underlying duty to bargain. It is a defense which is distinguishable from those mentioned in footnote 9, above, because those cases all deal with defenses to the underlying duty to bargain. In EEOC II, the judge aptly described the interplay between the status quo requirement under (a)(6) and the defenses to a unfair labor practice complaint for premature implementation where no bargaining obligation exists.

The foregoing conclusion [that there was no ULP committed because the matter was covered by the parties' agreement] is not inconsistent with the notion that an agency must maintain the status quo to the maximum extent possible while the Panel decides what action to take with respect to a matter referred to it for consideration. While that doctrine promotes stability in Federal labor-management relations by permitting the collective bargaining process to be completed before the status quo is disrupted, its underlying assumption is that the parties in question had a mutual obligation to bargain collectively concerning the matter(s) referred to the Panel. Where the parties have no such statutory duty to bargain in good faith, the status quo doctrine has no applicability.

EEOC II, 52 FLRA at 473.

      It is important to note that in this case, the Agency does not contend that there was no underlying duty to bargain. The Respondent's sole challenge to the Judge's determination that an unfair labor practice occurred is on the alleged basis that an impasse had not been reached, thereby foreclosing the determination that there was a violation of section 7116(a)(6). The Agency has not argued that the matters over which the Union sought to negotiate were already covered by a collective bargaining agreement or were otherwise non-negotiable or outside the duty to bargain.

      I am not persuaded that the existence of overlapping obligations to maintain the status quo under sections 7116(a)(5) and (6) militate against our prior holdings that (a)(6) requires maintenance of the status quo[n8]  We often find that different subsections are implicated by the same violation. See, e.g. Department of Housing and Urban Development, Pennsylvania State Office, Philadelphia, Pennsylvania, 53 FLRA 1635 (1998) (violations of section 7116(a)(1 and (2) found from one instance of discrimination); U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79 (1997) (violations of section 7116(a)(1) and (5) found arising from one instance of failure to bargain). References to "confusion and potential for resource misuse", slip op. at 21-22, are based on pure speculation. On the other hand, maintenance of the separate status quo requirements under (a)(5) and (a)(6) highlight the importance of the statutory impasse procedures in the public sector. While agencies may implement "at their peril" under (a)(5), under my view of precedent properly applied, they would be precluded by (a)(6) from implementing unless it was necessary for the agency to function. This narrow exception serves to [ v55 p85 ] balance unions' rights with the needs of the government to operate effectively and efficiently.

      Today's break with precedent further erodes the unions' standing as an equal partner with management, and thereby undermines the promotion of the President's partnership policies. It will not advance the public interest or the requirement of an effective and efficient government. Certainly it will not encourage the amicable settlement of disputes, nor will it assist the Panel. It will only serve the interests of those agencies which seek to implement prior to the conclusion of negotiations with less legal or practical difficulty. Yes, implementation is "at their peril," but the final, successful adjudication of a unfair labor practice charge, perhaps several years after unlawful implementation, is a poor manner of effectuating the purposes of the Statute. I would not abandon our time-honored approach to maintenance of the status quo under section 7116(a)(6), because I think that our historical approach was consistent with the Congressional intention that the Statute be "construed broadly to achieve its remedial purposes." 124 Cong. Rec. 13610 (daily ed. Oct. 14, 1978) (statement of Rep. Ford).

      The majority is correct in identifying the anxiety caused by their decision. Slip op. at 24, n.19. However, they miss the mark in identifying the source. My anxiety cannot be attributed to the General Counsel's pleading and prosecution of future cases, as the majority implies. I have no doubt that the General Counsel will read this decision and incorporate the impact into future litigation. Rather, my concern arises from the diminution of the importance of Panel procedures and the shift from the clear-cut guideline on the status quo that the parties have followed in their daily relationships, outside the hallowed halls of the Authority.

      The narrow construction of our Statute present in today's majority decision runs counter to Congress' stated support for bargaining. Congress found that collective bargaining is in the public interest. 5 U.S.C. § 7101(a). The labor-management relationship is fundamentally a power relationship, which Congress sought to circumscribe in the federal sector by restricting labor's right to strike and management's right to implement changes at will. If the limits on labor are maintained, and the flexibility that agencies have is expanded, as today's decision does, I believe that this relationship is adversely affected. Parsing the terms of the Statute in a manner that is unrelated to the day-to-day reality of the work place will undermine the stability of working conditions by encouraging premature implementation of management initiatives and by creating a context in which the Panel will be considering management proposals that have become a fait accompli. Maintenance of the status quo when Panel procedures have been invoked is required by section 7116(a)(6) and is a necessary component of the carefully balanced rights and obligations of labor and management in the federal sector. The Authority has been charged with providing leadership in establishing sound labor-management relations policies, consistent with the purposes of Chapter 71. 5 U.S.C. 7105(a)(1). In my view, today's decision fails to do that, as the Authority turns its back on a longstanding and correct reading of the Statute and rejects the clear policy reasons for the precedent that we cast aside.

File 1: Authority's Decision in 55 FLRA No. 19
File 2: Opinion of Member Wasserman
File 3: ALJ's Decision

Footnote # 1 for 55 FLRA No. 19 - Opinion of Member Wasserman

   The Judge also found a violation of section 7116(a)(5). While I do not join my colleagues in their view that this is a "derivative" violation, I need not analyze that issue because it may be resolved on remand.

Footnote # 2 for 55 FLRA No. 19 - Opinion of Member Wasserman

   Notwithstanding the Panel's having assumed jurisdiction and rendering a decision on the impasse, the Respondent argues that the Judge failed to determine whether an impasse existed. In that regard, the Respondent points to some evidence that mediation occurred in December, 1992, after the request for assistance was filed, after implementation, and prior to the Panel's assertion of jurisdiction. There is no doubt, however, that the Panel ultimately assumed jurisdiction over the request that was filed prior to the implementation date. The Respondent does not ask that BATF be overturned; it simply argues that the preconditions for its application had not been met. The majority minimizes the Panel's obvious determination that an impasse existed, and uses the Respondent's limited argument as a springboard for reviewing the meaning of section 7116(a)(6), generally. In so doing, the majority rejects the Panel's view of its jurisdiction in this case, along with the view, shared by the Charging Party, General Counsel, Judge and the Respondent, that BATF -- however interpreted -- is controlling precedent.

Footnote # 3 for 55 FLRA No. 19 - Opinion of Member Wasserman

   See, e.g., Davis-Monthan Air Force Base, Tucson, Arizona, 42 FLRA 1267, 1278 (1991).

Footnote # 4 for 55 FLRA No. 19 - Opinion of Member Wasserman

   The majority describes my viewpoint as proposing a modification of the law. Slip op. at 14, n.11. While I continue to adhere to a "totality of the circumstances" analysis, it is the majority who make a change by today's decision. The claim that there is "scant support" for my opinion, supra at n.11, must refer to the scarcity of cases filed under section 7116(a)(6). The Authority and courts have rarely considered section 7116(a)(6)